R v Djenadija
[2015] ACTSC 207
•22 July 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Djenadija |
Citation: | [2015] ACTSC 207 |
Hearing Date: | 22 July 2015 |
DecisionDate: | 22 July 2015 |
Before: | Murrell CJ |
Decision: | Total sentence of one year and 11 months’ imprisonment. Suspended after four months, upon the offender entering into a good behaviour order. |
Category: | Sentence |
Catchwords: | CRIMINAL LAW – Sentence – indecent assault – historical offences – delay in prosecution |
Legislation Cited: | Crimes Act 1900 (ACT) s 76 Crimes (Sentencing) Act 2005 (ACT) ss 7, 7(1), 33(1) Crimes (Sentencing Procedure) Act 1999 (NSW) s 19 |
Cases Cited: | Monfries v The Queen [2014] ACTCA 46 R v MJR (2002) 54 NSWLR 368 Stalio v The Queen (2012) 223 A Crim R 261 |
Parties: | The Queen (Crown) Lazo Djenadija (Offender) |
Representation: | Counsel Ms J Campbell (Crown) Mr J Davidson (Offender) |
| Solicitors ACT Director of Publication Prosecutions (Crown) AC Lawyers (Offender) | |
File Number: | SCC 121 of 2014 |
MURRELL CJ:
Offences
On 13 March 2015 a jury found the offender guilty of four historical offences:
(a)Between 2 October 1983 and 3 August 1985 he committed an indecent assault on J, a person under 16 years of age, contrary to s 76 of the Crimes Act1900 (ACT) (Offence 1).
(b)Between 2 October 1983 and 3 August 1985 he committed an indecent assault on J, a person under 16 years of age, contrary to s 76 of the Crimes Act (Offence 2).
(c)Between 2 October 1983 and 3 August 1985 he committed an indecent assault on J, a person under 16 years of age, contrary to s 76 of the Crimes Act (Offence 3).
(d)Between 10 May 1983 and 31 December 1984 he committed an indecent assault on T, a person under 16 years of age, contrary to s 76 of the Crimes Act (Offence 4).
At the time of the offences the maximum available penalty was five years' imprisonment. In late 1985 there were sweeping changes to the law, and the maximum available penalty for an offence of indecent assault on a person aged between 10 and 16 years was doubled to 10 years' imprisonment.
The offender has spent no time in custody in relation to these matters.
Background
The victims are sisters. T was born in June 1972 and J was born in August 1973. At the date of the offence each victim was aged between 10 and 12 years. The offender was born in December 1939. He was between about 43 and 46 years old at the time of the offences.
The victims' family had met the offender in Serbia in the 1970s. He encouraged the family to migrate to Australia. In 1980 they migrated from Serbia to Australia. When they arrived, they stayed with the offender and his family for a few months before they moved to their accommodation. Later, the relationship between the victims' parents broke down, as did the relationship between the offender and his wife. Thereafter, the offender resided with his daughter, E. The victims were friendly with E and often visited the offender's home.
Offence 1 involved the offender pushing J's legs apart, lying on top of her and simulating sexual intercourse. Both were fully clothed. J could feel the offender's erect penis through her clothes. He said, "Does that feel nice?" J gave evidence that the conduct lasted for 30 seconds or a minute.
Offence 2 occurred immediately afterwards. The offender undid his belt and the top button of his pants. He took J's hand and put it inside his pants. He was not wearing underpants. He made her hold and stroke his penis.
Offence 3 was similar to Offence 1. When the offender and J were clothed, the offender lay on top of J, moved her legs apart and rubbed himself against her. J could feel the offender's erect penis rubbing against her genital area. The offender stopped when his girlfriend, who was present in the house, called out to him. J estimated that the incident lasted about 30 seconds.
The offender was a janitor and he was occasionally required to attend a public school out of school hours. Offence 4 occurred when T accompanied the offender to a public school. The offender rubbed T's breast over her clothing saying, "Do you like this?"
Victim Impact
The victims J and T read victim impact statements to the Court. Their mother’s victim impact statement was tendered.
J and T described the shame, disgust and fear that they experienced as a result of the offender's behaviour. They felt obliged to keep a “dirty secret” throughout their childhoods. They had ongoing feelings of anxiety. Both still feel the impact of the offender's abuse.
For many years J did not reveal the offending behaviour, even to people who were close to her and who were trying to help her confront her feelings of anxiety.
The victims' mother said that, when they reached adolescence, the victims, who had been happy outgoing children, became withdrawn and unhappy. She said that T and J are overprotective of their own children, and she described the ripple effect that has passed through several generations as a result of the offender's misconduct.
The victims' mother feels guilty because of what occurred to her children. She feels traumatised because the offender flouted the friendship between the families and breached trust. The victims' mother is receiving counselling.
The Court acknowledges the suffering of the victims and their mother, and hopes that the conclusion of these proceedings will enable the victims and their families to move on.
Objective Seriousness of the Offences
Individually and collectively, the offences are of significant objective seriousness. However, they are not at the upper end of the range of objective seriousness. They acquire significant objective seriousness because of the age of the victims and the breach of trust that was involved. The offender was a close family friend and the victims' family had been dependent on the offender and his family when they first arrived in Australia. The victims' family trusted the offender and relied upon his integrity.
The conduct of simulating sexual intercourse was highly offensive. Offence 2 is the most serious offence because the offender required the victim to touch and stroke his penis, involving skin-on-skin contact.
However, each indecent was quite brief. The objective seriousness of the incidents has to be assessed in the context that, at the relevant time, indecent assault covered a wide range of sexual activity. For example, fellatio, which currently falls within in the definition of sexual intercourse, was at that time a form of indecent assault. Consequently, Offences 1 to 3, although entailing significant objective seriousness, are not in the most serious category. In relation to Offence 4, the prosecution properly concedes that it is at the lower end of objective seriousness.
Subjective Circumstances of the Offender
The offender is now 75 years old. He lives with his wife, who is supportive. The offender has no relevant prior convictions. The absence of convictions, considered in the context of the offender's age and poor physical health, mean that there is a very low risk of reoffending. This is despite the offender's continuing denial that he committed the offences. The author of the Pre-Sentence Report (PSR) assessed the offender as being at low risk of reoffending.
As a child, the offender was affected by civil war in Yugoslavia. He recalls living for a time in a displaced persons' camp. His education was limited and interrupted by the war. At 16 years of age he left school to pursue farm work and support his family.
In 1960 the offender migrated to Australia as a single man, leaving his family behind. After undertaking manual jobs, he obtained employment as a hotel manager in Canberra. Between 1970 and 1977, the offender returned to live in Serbia. He came back to Australia in 1977 and obtained management work in Canberra hotels. In the late 1970s he suffered an injury that left him with a disability. He then worked as a school janitor. He suffered an injury to his back in the mid-1980s. Since then, he has not worked and has received a disability support pension.
The offender has had two long-term relationships. The first was with E's mother. That relationship lasted 21 years. The couple separated in 1983. He is now in his second long-term relationship.
The offender suffers from episodes of gout and mild degenerative osteoarthritis in his hips and knees. These conditions affect his mobility. However, he does not require walking aids. A neuropsychological report reveals that the offender is of average premorbid intelligence, and there is only very mild organic change in the brain. Of more concern is the fact that the offender suffers from severe labile hypertension, compounded by anxiety associated with these proceedings. The offender's anxiety and mild depression have manifested in sleep disturbance and fluctuating mood. He also suffers from poorly-managed diabetes. These factors predispose the offender to cardiovascular problems.
There is evidence of early vascular changes and mild cognitive impairment. These conditions may worsen if cardiovascular and cerebrovascular risk factors are not minimised and controlled. In 2013, Dr McGill reported that, since 2012, the offender's hypertension had become more difficult to control. The position has not improved over the past two years. Dr Dedousis, who provided a medico-legal report, said that the offender has severe labile hypertension that requires urgent management and that the offender requires specialist attention from a cardiologist and endocrinologist. Dr Dedousis said that the offender's conditions would be most appropriately managed in a community setting.
On that basis, the offender submitted that the imposition of a full‑time custodial sentence would have an adverse impact on his already poor health.
The health of an offender is always a relevant consideration in sentencing. However, it is the responsibility of ACT Corrective Services to provide appropriate treatment for sick prisoners. In this case, there is no convincing evidence that full‑time imprisonment would have a significant adverse impact on the offender's health.
Other Sentencing Considerations
In sentencing the offender, the Court is required to consider the sentencing purposes in s 7 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act). Most of the purposes mentioned in that section are relevant to the present sentencing exercise. In particular, it is important to ensure the offender is adequately punished in a way that is just and appropriate, and to address the purposes of accountability and denunciation. The purpose of general deterrence is always important in relation to matters such as the present. Personal deterrence is of less significance in this case, as there appears to be little risk of further offending. Similarly, there is no particular need to protect the community from the offender in so far as future offending is concerned.
In relation to rehabilitation of the offender, I have found that he is unlikely to reoffend. In so far as rehabilitation may go, there is no indication that the offender will develop a more appropriate attitude to offences of this nature nor acknowledge the commission of the offences.
The prosecution made the submission, which I accept, that since the commission of these offences in the 1980s, community attitudes to victims of crime have changed. The impact of crimes upon the victims has received more prominence in sentencing proceedings. Consistent with this change in community attitude, s 7(1)(g) of the Sentencing Act requires the sentencing court "to recognise the harm done to the victim of the crime and the community". Similarly s 33(1)(f) of the Sentencing Act requires the sentencing court to consider “the effect of the offence on the victims of the offence, the victims' families and anyone else who may make a victim impact statement.” This is one of the matters that the Court must take into account when sentencing the offender: s 33(1) of the Sentencing Act. I believe that I have referred to the other matters contained in s 33 of the Sentencing Act as are known and relevant.
Delay
A matter that is not specifically mentioned in s 33 of the Sentencing Act but which is a relevant sentencing consideration is the delay in prosecution of the offences. The offending conduct ceased in 1985. It was first reported to police in 2012. The delay in reporting does not reflect adversely on the victims. In cases involving sexual abuse, victims generally have very good reasons for any delay in reporting. However, in R v Todd [1982] 2 NSWLR 517 the Court pointed out that delay for whatever reason, calls for a degree of understanding and flexibility in the approach to sentencing. Flexibility may be required for a variety of reasons.
In this case, when considered together with the offender's old age and associated ill-health, the delay is relevant to sentencing because the offender now confronts the possibility of full‑time imprisonment as a man in poor health and in his declining years. Had the matter been prosecuted at an earlier time, the offender would have been in relatively good health and the prospect of full‑time imprisonment would have been less daunting.
In this case, these considerations inform the way in which an appropriate sentence should be served, rather than the length of any sentence. There is no doubt that some type of significant sentence of imprisonment is the only appropriate sentence.
Sentencing Practice and Patterns
Lengthy submissions were made with respect to the requirement that the Court consider "current sentencing practice" in accordance with s 33(1)(za) of the Sentencing Act. There were also submissions about the desirability of considering sentencing patterns at the time that the offences were committed (now some three decades ago).
In R v MJR (2002) 54 NSWLR 368 Spigelman CJ (with whom Grove and Sully JJ and Newman AJ agreed), held at [31] that the Court should "take into account the sentencing practice as at the date of the commission of an offence when sentencing practice has moved adversely to an offender". In my view, the reference to “sentencing practice” should be read as "sentencing patterns". Initially, the prosecution submitted that s 19 of the Crimes (Sentencing Procedure) Act 1999 (NSW) was pivotal to the outcome in MJR and that there was no equivalent provision in the ACT. That submission is inaccurate for two reasons. First, there are equivalent provisions in the ACT, being s 84A of the Legislation Act 2001 (ACT) and s 25 of the Human Rights Act 2004 (ACT). Second, the decision in MJR did not turn on s 19 of the Crimes (Sentencing Procedure) Act 1999. Spigelman CJ considered the proposition enshrined in s 19 of the Crimes (Sentencing Procedure) Act 1999 to be no more than "established principle".
There is an important distinction between “current sentencing practice” (the matter addressed by s 33(1)(za) of the Sentencing Act) and "sentencing patterns": see Monfries v The Queen [2014] ACTCA 46 at [82] – [84], R v Scheeren [2014] ACTSC 272 at [44] – [57] (where the distinction was better expressed) and R v Nona [2015] ACTSC 136 at [48] – [50]. “Current sentencing practice” refers to the sentencing requirements that apply when the sentence is imposed, e.g. the statutory requirement to consider ss 7 and 33 of the Sentencing Act. “Sentencing patterns” refers to the length and structure of sentences that were imposed at the time that the offence was committed. Insofar as a sentencing pattern can be identified, sentences for historical offences should generally reflect the sentencing pattern when the offence occurred. The prosecution accepted that, consistent with the approach of the Victorian Court of Appeal in Stalio v The Queen (2012) 223 A Crim R 261 at [46] – [54], reference to past sentencing patterns supports the principle of "equal justice".
There may be exceptions to the application of this general approach. For example, the position might be otherwise if the offender has positively contributed to the delay in prosecution. No such allegation was made in the present case. Further, I accept the prosecution submission that, over time, some sentencing considerations may acquire greater or lesser significance. An illustration of that proposition is that contemporary courts are better informed about the impact of child sex offences on victims, and may give greater emphasis to that consideration in the sentencing process.
It is extremely difficult, if not impossible, to identify a sentencing pattern applicable for crimes of this nature committed in 1983-1985. The prosecution helpfully referred the Court to some decisions that were given in the period 1984-1994. However the decisions do not establish a particular sentencing pattern. The decision in Scheeren is of some interest because it involved indecent assaults that occurred in about 1979-1980, only a few years before the subject offences. The conduct that was the subject of those proceedings was, in some respects, similar to the conduct that is the subject of the present proceedings. For that reason it is relevant to look at the starting point for the sentences in Scheeren. However, in Scheeren, the offender pleaded guilty and received a discount for the pleas.
Generally, sentencing patterns for child sex offences in the mid-1980s were considerably more lenient than current patterns. This is partly because sentences were fixed against a much lower maximum penalty than that which currently applies. As discussed in Scheeren, in the 1980s courts required offenders to spend a significantly lower proportion of the total sentence in custody before being released.
Sentence
The offender is convicted of each offence.
For the offence of commit indecent assault on J, a person under 16 years of age, between 2 October 1983 and 3 August 1985, the offender is sentenced to 13 months’ imprisonment, from 22 August 2015 to 21 September 2016 (Offence 1).
For the offence of commit indecent assault on J, a person under 16 years of age, between 2 October 1983 and 3 August 1985, the offender is sentenced to 15 months’ imprisonment, from 22 August 2015 to 21 November 2016 (Offence 2).
For the offence of commit indecent assault on J, a person under 16 years of age, between 2 October 1983 and 3 August 1985, the offender is sentenced to 13 months’ imprisonment, from 22 May 2016 to 21 June 2017 (Offence 3).
For the offence of commit indecent assault on T, a person under 16 years of age, between 10 May 1983 and 31 December 1984, the offender is sentenced to six months’ imprisonment, from 22 July 2015 to 21 January 2016 (Offence 4).
The total sentence is one year and 11 months’ imprisonment.
The offender will serve four months of the total sentence and thereafter the sentence will be suspended upon him entering into a good behaviour order. In respect of the sentences imposed on Offences 1, 2 and 4, the sentences will be served until 21 November 2015, and thereafter the sentences are suspended and I make a good behaviour for the remaining period of the relevant sentence. The sentence for Offence 3 does not commence until 22 May 2016, and I suspend the whole of that sentence and make a good behaviour order for the whole of the term of the sentence.
| I certify that the preceding forty-five [45] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell. Associate: Date: 5 August 2015 |
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